In the

United States Court of Appeals

For the Seventh Circuit

No. 18-3685

JAMES A. MOLLET,

Plaintiff-Appellant,

v.

CITY OF GREENFIELD,

Defendant-Appellee.

Appeal from the United States District Court for the 

Eastern District of Wisconsin.

No. 2:16-cv-01145-LA — Lynn Adelman, Judge.

ARGUED MAY 23, 2019 — DECIDED JUNE 13, 2019

Before BAUER, MANION, and BRENNAN, Circuit Judges.

BAUER, Circuit Judge. In this case we must decide whether

James Mollet’s complaint about a racially charged incident was

the but-for cause of his constructive discharge. For the reasons

below, we answer in the negative and affirm the decision of the

district court.
2 No. 18-3685

I. BACKGROUND

James Mollet began working as a firefighter for the Greenfield Fire Department in 1995. The Greenfield Fire Department

had three eight-hour shifts each day and one battalion chief

supervised each. Mollet rose through the ranks of the fire

department and became a battalion chief in 2009. 

In November 2011, John Cohn was appointed chief of the

department and George Weber assistant chief. Mollet and

Cohn were friendly before he was appointed chief, but

following the appointment phone calls and text messages

between the two ceased. The relationship was further strained

because Mollet felt Cohn’s actions as chief were inconsistent

with the vision for the department Mollet and Cohn discussed

prior to Cohn’s promotion.

With that we move to the incident that underpins the

theory of Mollet’s case. At the end of each shift firefighters

stow their gear and bedding and when one fails to do so, other

firefighters sometimes prank the offender. On February 17,

2012, firefighter Cesar Hernandez forgot to stow some of his

gear. The firefighters in the following shift hung the items from

the ceiling and posted a paper sign with a Mexican flag printed

on it with the words “Border Patrol” written beneath it.

Hernandez did not file a complaint after the incident, but

another firefighter who found the incident discriminatory

reported it to her superior officer, who reported the incident to

Mollet. 

Mollet emailed Cohn and Weber later that evening and

informed them of the incident. Weber replied:
No. 18-3685 3

Thank you for bringing this to our attention. I

agree with you 100% that this crosses the line of

firehouse hazing. Could you do some investigating into this incident and report any findings

back to me. This type of behavior should not

and will not be tolerated. Please let me know

what you find out.

Mollet indicated he would rather not investigate the incident

himself, but Cohn emailed that Mollet should investigate

because Cohn did not want to hand the issue over to those

under whose watch it may have occurred. 

An individual eventually took responsibility for the

incident and four individuals were disciplined—one lost a day

of vacation and three received verbal reprimands.

In the following months Cohn and Weber were critical of

Mollet’s performance. In March 2012, a month after the

incident, Cohn and Weber criticized Mollet’s performance in

checking off probationary firefighters on certain tasks. On

April 12, 2012, Weber sent an email critical of Mollet’s leadership skills. The following day, Weber informed Mollet that he

would be taking over the lead on rapid intervention team

training. Mollet was later removed from his position overseeing the firefighter internship program after a former intern

improperly listed the fire department as a former employer.

On August 10, 2012, Cohn and Weber met with Mollet,

criticized his communication skills, and asserted that he had

been critical of Weber and Cohn with his fellow firefighters.

On August 31, 2012, Cohn criticized Mollet for issuing commendation letters to public works employees without notifying
4 No. 18-3685

him. In November 2012, Cohn criticized Mollet because an

EMT he had trained failed to notify the police of a patient’s

injuries when it appeared they were the result of domestic

violence. Cohn also criticized Mollet’s leadership and told him

in a meeting on November 15 that he needed to change. He

also informed Mollet that it may be too late for him to change

and that he might be demoted or reassigned. 

The following month, Mollet applied for a position in

Menomonee Falls. He indicated in his application that he

desired an opportunity to take on challenges their fire department presented with its unique structure and potential

upgrade of its emergency medical services to the paramedic

level. Mollet received a conditional offer of employment from

Menomonee Falls on February 4, 2013. On February 8, Mollet

met with Cohn and Weber and they indicated that he would be

demoted if he did not take the position in Menomonee Falls.

On February 19, 2013, Mollet told Weber he was going to

accept the offer from Menomonee Falls which was contingent

upon his passing a physical and psychological exam. Mollet

received a letter from Cohn accepting Mollet’s resignation;

Mollet responded stating he would not resign until the

contingencies of his future employment were met, but on

February 28 Cohn responded that Mollet’s employment had

terminated on February 24. Mollet was ultimately placed on

paid leave until he submitted his letter of resignation on

March 23, 2013, and began his employment with Menomonee

Falls on March 25.

Mollet filed a complaint in federal court on August 25, 2016,

alleging he was retaliated against for opposing discrimination
No. 18-3685 5

in the workplace. The gravamen of the complaint is that Mollet

was treated poorly and forced to resign as retaliation for

complaining about the Hernandez incident. The defendants

moved for summary judgment and the district court referred

the case to a magistrate judge for a report and recommendation. The magistrate judge recommended the motion be

granted and the decision was adopted in toto by the district

court. The court found summary judgment was appropriate

because no reasonable trier of fact could find that reporting the

Hernandez incident was the but-for cause of his constructive

discharge. Because we agree, we affirm.

II. DISCUSSION

Summary judgment is appropriate when “there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

We review a district court’s grant of summary judgment

de novo and construe all facts and draw all reasonable inferences in favor of the nonmoving party. Levitin v. Nw. Cmty.

Hosp., 923 F.3d 499 (7th Cir. 2019).

Title VII prohibits employers from retaliating against

employees for complaining about discrimination. 42 U.S.C.

§ 2000e-3(a). Mollet argues that the Greenfield Fire Department

retaliated against him for complaining about the discriminatory incident involving Hernandez. To establish a prima facie

case of retaliation under Title VII, Mollet must show: (1) he

engaged in a statutorily protected activity, (2) his employer

took a materially adverse action against him, and (3) there is a

causal link between the protected activity and the adverse

action. Robinson v. Perales, 894 F.3d 818, 830 (7th Cir. 2018). The
6 No. 18-3685

district court found that Mollet carried his burden on the first

two elements, but failed to provide evidence that would lead

a reasonable jury to find a causal connection. Because we

agree, we will address only the issue of causation. 

Mollet asserts the conditions at the fire department rapidly

deteriorated after he complained about the Hernandez

incident. In Mollet’s opinion, this shows complaining was a

but-for cause of his constructive discharge, implying that

several but-for causes may contribute to an adverse employment action. In crafting this argument, Mollet misconstrues the

Supreme Court’s holding in University of Texas Southwestern

Medical Center v. Nassar, 570 U.S. 338, 362 (2013), as well as a

footnote from this Court’s opinion in Carlson v. CSX Transportation Inc., 758 F.3d 819, 828 n.1 (7th Cir. 2014). 

In Nassar, the Supreme Court rejected the argument that the

causation requirement in Title VII retaliation claims merely

requires that plaintiffs show the protected activity was a

“motivating factor” in a decision to retaliate against the

employee. 570 U.S. at 354. The Court cited Gross v. FBL

Financial Services, Inc., 557 U.S. 167 (2009), which held similar

language in the Age Discrimination in Employment Act

warranted a finding of but-for causation. Id. at 350 (citing

Gross, 557 U.S. at 176). The Court noted that Gross held that “an

employer took adverse action because of age meant that age

was the reason that the employer decided to act, or, in other

words, that age was the but-for cause of the employer’s

decision.” Id. (emphasis added and internal quotation marks

omitted). The dissent pointed out that “[w]hen more than one

factor contributes to a plaintiff’s injury, but-for causation is

problematic” because there can only be one but-for cause of an
No. 18-3685 7

action. Id. at 384. (Ginsburg, J., dissenting). “When an event is

‘overdetermined,’ i.e., when two forces create an injury each

alone would be sufficient to cause, modern tort law permits the

plaintiff to prevail upon showing that either sufficient condition created the harm.” Id. (Ginsburg, J., dissenting) (citing

Restatement (Third) of Torts § 27, at 376–77). The Nassar

majority did not imagine a regime where plaintiff could merely

establish a but-for cause: “the proper conclusion here ... is that

Title VII retaliation claims require proof that the desire to

retaliate was the but-for cause of the challenged employment

action.” Id. at 352 (emphasis added).

Our opinion in Carlson is not contrary. In Carlson, we

merely explained that factors other than the protected activity

could contribute to bringing about an adverse action, but a

plaintiff still must prove the protected activity was the but-for

cause of the adverse action—that “the adverse action would

not have happened without the activity.” 758 F.3d 819, 828 n.1

(7th Cir. 2014). Thus, the question in this case is not, as the

plaintiffs put it, whether Mollet complaining about the Hernandez incident was a but-for cause of the adverse action,

rather whether the protected activity was the but-for cause of

the adverse action. Heath v. Indianapolis Fire Dep’t, 889 F.3d

872, 874 (7th Cir. 2018). In other words, would Mollet have

not been constructively discharged if he did not complain

about the Hernandez incident. Robinson, 894 F.3d at 834.

Mollet acknowledged during his deposition that he was

miserable at work once Cohn became chief in November 2011,

three months before the Hernandez incident occurred. As

noted above, communication ceased between Cohn and Mollet

shortly after Cohn became chief and before the Hernandez
8 No. 18-3685

incident. Additionally, Mollet was told by members of his

battalion that management was monitoring his performance

before the Hernandez incident. Cohn’s criticism also began

before the Hernandez incident—he called out Mollet for failing

to renew his EMT license. 

As the district court noted, there is also evidence in the

record that Cohn and Weber both responded promptly and

positively to Mollet’s complaint about the Hernandez incident

and agreed that the conduct was unacceptable. Cohn and

Weber disciplined four individuals after the investigation was

complete. Mollet argues that Cohn and Weber were actually

frustrated that Mollet complained about the incident and their

response, insistence on an investigation, and eventual discipline of several firefighters was pretextual. In support of this

argument Mollet cites evidence in the record that indicates

Weber knew of the incident before Mollet reported it. This,

Mollet argues, shows that Weber and Cohn planned to do

nothing until Mollet complained. But there is no evidence in

the record that Cohn or Weber disagreed with Mollet or

considered the issue unworthy of investigation. Nor is there

evidence that Cohn or Weber were displeased that Mollet

brought the issue to their attention. The mere fact that they

may have known about the incident before Mollet complained

is not evidence that the entire investigation and discipline was

pretextual. See Boss v. Castro, 816 F.3d 910, 917 (7th Cir. 2016)

(holding that “circumstantial evidence must point directly to

a discriminatory reason for the employer’s action “ and “a

plaintiff’s subjective beliefs are insufficient to create a genuine

issue of material fact”). A reasonable jury could not conclude

as much without engaging in speculation.
No. 18-3685 9

Mollet also argues the timing of Cohn and Weber’s criticism

was suspicious because it began less than a month after the

Hernandez incident and continued through his constructive

discharge nearly a year later. But these events have little in

common other than the fact that they occurred after the

Hernandez incident. There is nothing that connects them to the

Hernandez incident and no evidence indicating that the

complaints about Mollet were related to any goal other than

improving his job performance. Without more, this evidence

provides little support for Mollet’s causation argument. Gracia

v. SigmaTron International, Inc., 842 F.3d 1010, 1021 (7th Cir.

2016) (noting that “suspicious timing alone is rarely enough to

create an inference of retaliatory motive”). 

Thus, there is no evidence presented by the plaintiff that

could cause a reasonable juror to find that but-for Mollet

complaining about the Hernandez incident, Cohn and Weber

would not have criticized Mollet for these potential deficiencies in his performance. Furthermore, there is substantial

evidence that Mollet’s relationship with Weber and Cohn was

strained and Cohn had demonstrated a skepticism regarding

the sufficiency of Mollet’s performance before the Hernandez

incident occurred. Because a reasonable jury could not find the

causation required in a Title VII retaliation case based on the

evidence in the record, we affirm the district court. 

III. CONCLUSION

Considering all of the above, we affirm the district court’s

decision to grant summary judgment in favor of defendant.